The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Defendants' Motion for Summary Judgment. For the reasons set forth below, the Motion [#13] is GRANTED.
On June 28, 2004, Detective Michael Gray met with a confidential source named "Chris" regarding the sale of crack cocaine in Bloomington, Illinois. Chris advised that "E", who was later identified as Eric Thomas ("Thomas"), would come to Bloomington to sell crack cocaine. Detective Gray then set up a controlled buy, giving Chris $400.00 to make the purchase on July 15, 2004.
On July 15, 2004, Plaintiff, Eric Davis ("Davis"), drove Thomas to Bloomington. Davis and Thomas initially met up with Chris at a Wendy's restaurant next to a Days Inn motel. Davis went inside Wendy's to use the rest room and returned while Thomas and Chris were talking but claims to have not heard any of their conversation. After some discussion between Thomas and Chris, they all drove over to the motel. Thomas got out of Davis' vehicle and got in Chris' vehicle. When Thomas returned, he told Davis, "Let's go," and Davis drove away following Thomas' directions. Chris followed in his vehicle.
At some point, Thomas and Chris consummated the drug transaction. Thomas delivered 3 grams of crack cocaine in exchange for $400.00. Shortly after the transaction was completed, Chris met with Detective Gray and told him that Thomas had threatened him and had a gun. Gray relayed this information to the arrest team, which included Officer Thomas Rena and his canine "Rocky," Officer John Heinlen and his canine "Kao," Officer Bryce Stanfield, Officer Chad Wamsley, and Detective Ken Bays.
Squad cars from the arrest team got behind Davis' vehicle. As the police cars behind him accelerated their speed, Davis turned the wrong way onto a one-way street, and the officers activated their overhead lights. At this time, the officers had already received the report that the suspects had a gun and proceeded to conduct a felony traffic stop. The three squad cars stopped side-by-side behind Davis' vehicle. The officers took positions around Davis' car, with the canine officers taking the lead role in making the arrest. Officer Rena was on the driver's side of the vehicle with his canine, Rocky, and Officer Heinlen was on the passenger side of the vehicle with his canine, Kao.
The officers intended to take Davis out of the car first, but when he said that he could not open the door, Thomas was ordered out of the car and was taken into custody without incident. After Thomas was in custody, Officer Rena holstered his gun and approached the vehicle. Officer Rena testified that he told Davis to crawl out the window of the car; Davis denies ever having received this instruction. Davis continued to state that the door would not open from the outside, but eventually got the door open from the inside after receiving permission to do so from Officer Rena. The officer instructed him to immediately exit and get down on the ground, but Davis did not do that. Davis was aware of the dogs on either side of his vehicle, as he could see them and hear them barking, and admits that he may have turned to look in the direction of the dog on the passenger side of the vehicle. The officers stated that they felt that Davis might be reaching for the gun that was reportedly in the car and released both canines into the car with the command to bite. Rocky entered the driver's side first and bit Davis on the left thigh. Kao then entered the passenger side and bit Davis' right bicep and tricep. Once the officers confirmed that Davis' hands were empty, they gave the canines the command to release and got them out of the car. The squad cars had active video cameras in them which captured the events.
Davis was taken into custody by Officers Stanfield and Wamsley. He was transported from the scene by ambulance to St. Joseph Medical Center, where he received three stitches on his arm for the bite. The bite on his leg did not require stitches. Davis now has a strip of scars on his right arm and another scar on his leg from the bite.
Davis brought this suit against Officer Rena, Officer Heinlen, and the City of Bloomington (the "City") alleging that the officers used excessive force in releasing their canines to attack him. Defendants have now moved for summary judgment. The matter is fully briefed, and this Order follows.
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
In this case, Davis has alleged that Officers Rena and Heinlen used excessive force against him in releasing their canines to attack him during the felony stop. When addressing an excessive force claim brought under §1983, the analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. Graham v. Connor, 490 U.S. 386, 394 (1989). The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard.
Where, as here, the excessive force claim arises in the context of the seizure of a citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons ... against unreasonable ... seizures." Id. All claims that law enforcement officers have used excessive force in the course of an arrest or other "seizure" of a free citizen are analyzed under the Fourth Amendment and its objective "reasonableness" standard. Id. at 395. In other words, to properly state a fourth amendment excessive force claim, a plaintiff must establish that a seizure occurred and that the officer's use of force in effecting the seizure was unreasonable. United States v. Hernandez, 1997 WL 80916, *3(N.D. Ill. Feb. 21 1997).
The reasonableness of the officer's use of force is to be judged from the perspective of a reasonable officer on the scene at the moment that the force was used. Graham, 490 U.S. at 396; Abdullahi v. Madison, 423 F.3d 673, 768 (7th Cir. 2005). Courts must consider the "facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 395; Lawrence v. Kenosha County, 391 F.3d 837, 843 (7th Cir. 2004).
Here, there is no question that a seizure occurred, because it is undisputed that Davis was detained, restrained, and taken into custody. The question is whether the use of force was objectively reasonable under the circumstances. Defendants contend that when the totality of the circumstances is considered, Davis' non-compliance with their verbal orders and the possibility that he was reaching for a gun justified their release of the canines.
Davis admits that he did not open the door and get out of the car as directed by Officer Rena, but explains his failure to comply and goes on to argue that the officers released their dogs before he was able to get out of the car. Given Defendants' assertion that they only released the dogs after he made a move that caused them to believe that he might be reaching for the gun that they had been told was in the car, Davis contends that there is a dispute of material fact precluding summary judgment.
Defendants assert a claim of qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the United States Supreme Court enunciated the "modern standard to be applied in qualified immunity cases." Auriemma v. Rice, 895 F.2d 338, 341 (7th Cir. 1990). The Court stated:
Governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional ...